The Death Penalty - an Obstacle to the 'War Against Terrorism'?

77 Pages Posted: 27 May 2004

See all articles by Thomas M. McDonnell

Thomas M. McDonnell

Elisabeth Haub School of Law at Pace University


September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. The magnitude of these crimes, the killing of over 3,000 innocent people, cries out for redress.

Yet most countries in the world, including nearly all our closest allies, have abolished capital punishment. None of the four currently operating international criminal tribunals is authorized to give a death sentence. In addition, the advent of the suicide bomber turns the deterrence justification for the death penalty inside out. Might the death penalty help create martyrs rather than discourage similar attacks? Could our imposing the death penalty increase support in the Islamic world for al Qaeda and other extremist groups? Furthermore, to what extent as a matter of constitutional law and policy, should a secondary actor, one who did not kill, but who was a member of a terrorist conspiracy, be subject to the death penalty? This Article examines these questions in the context of the Zacarias Moussaoui case, the supposed twentieth hijacker, who, on September 11, 2001, had been held in custody for twenty-six days.

Note: This article was published just before the Iraq prison scandal broke. The article, however, does discuss torture and the consequences of mistreating captured individuals suspected of committing acts of terrorism.

Keywords: death penalty, terrorism, counter-terrorism, international law, capital punishment, conspiracy, accomplice liability, torture

Suggested Citation

McDonnell, Thomas M., The Death Penalty - an Obstacle to the 'War Against Terrorism'?. Vanderbilt Journal of Transnational Law, Vol. 37, No. 353, 2004. Available at SSRN:

Thomas M. McDonnell (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States
(914) 422-4381 (Phone)
(914) 422-4261 (Fax)

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